If the US Congress were to pass an extremely destructive (but constitutional) law that the president then signed, what would the result be and would there be any recourse from the courts or the states? My understanding is that the courts can only clarify laws or reject them as unconstitutional.

Some examples:

  • 120% flat income tax rate for everyone
  • Setting the maximum sentence for all crimes to a small fine
  • Illegalizing all pharmaceutical drugs, even for hospitals
  • 16
    The problem with you saying the law is constitutional is that that is exactly what the court, especially the Supreme Court, gets the decide. They can say “this exceeds the authority” of Congress- sort of a reverse commerce clause action.
    – Damila
    Commented Mar 3, 2021 at 0:45
  • 1
    There is 200+ years of case law that has discussed every law thoroughly, so there is a lot of historical court opinions which expand on the constitution. The consitution wasn't supposed to be all inclusive, but relies on courts to build reasonable opinions. I would guarantee a good lawyer would find dozens of statues and case laws against your 3 examples.
    – Issel
    Commented Mar 3, 2021 at 12:33
  • This is unanswerable because any such law you could write will have a different vector from which a constitutional challenge could occur. Commented Mar 3, 2021 at 19:38
  • 1
    I'm not sure that a court actually would strike down setting the maximum sentence for all [federal] crimes to a small fine. Anyone challenging it would face significant standing issues (you can't sue the government for not punishing criminals harshly enough), and it would almost certainly survive rational basis review (one could simply argue that the penalties were too harsh and contributed to overpopulation in prisons, plus that state law covers the gaps adequately). Rational basis review is quite lenient.
    – Ryan M
    Commented Mar 4, 2021 at 1:01
  • 2
    @Issel "that has discussed every law thoroughly": not at all. There are many laws, some very old indeed, that have never been heard by the courts. And the courts certainly haven't ruled on future unknown laws. While these specific examples might be unrealistic, someone with more knowledge of court precedent (your "good lawyer," perhaps) should have little trouble coming up with a better example to illustrate the question.
    – phoog
    Commented Mar 4, 2021 at 3:00

6 Answers 6


Generally, the legislature is not restricted to passing laws that are a good idea. This has been remarked on by the Supreme Court (in Justice Stevens's concurrence, emphasis added):

But as I recall my esteemed former colleague, Thurgood Marshall, remarking on numerous occasions: “The Constitution does not prohibit legislatures from enacting stupid laws.

There are some limits: for one thing, the law must pass the rational basis test, which, while extremely favorable to the legislature (Congress could probably ban coffee consumption, for instance), does impose some limits and might result in at least some of your examples being struck down—I cannot imagine a court finding that the government had a rational basis for taxing everyone 120% of their income, for example.

However, the states do have a recourse in many cases, especially if Congress were to reduce the penalties for crimes: most "common" crimes (assault, battery, murder, theft, etc.) are state crimes, so Congress wouldn't have the power to change the penalties for those. Most cases where these things become federal crimes involve conduct affecting multiple states, and the person committing the crime would likely also commit at least one state crime. States also aren't required to assist the federal government in its enforcement of federal law. For instance, quite a number of states believe that the federal prohibition of marijuana is unjust, and won't enforce those laws within their boundaries.

  • 2
    Wouldn't Congress trying to legislate something that's reserved to the states be an example of an unconstitutional law?
    – Barmar
    Commented Mar 3, 2021 at 15:14
  • 3
    @ohwilleke I thought the idea of federalism is that anything that isn't interstate is controlled by the individual states. I know that has been eroded by liberal interpretation of the commerce clause and federal subsidies tied to states enacting federal policies, but I think it's still the default.
    – Barmar
    Commented Mar 3, 2021 at 19:39
  • 6
    @Barmar The interstate commerce power, the spending power, the tax power, the enforcement of civil rights power, national defense authority, and election regulation authority, combined, gobble up almost all exclusive state legislative authority, in practice, and most things are subject to the rational basis test, notwithstanding the theory that you correctly articulate.
    – ohwilleke
    Commented Mar 3, 2021 at 19:41
  • 3
    The interstate commerce power, in particular, is extremely broad, and has been interpreted to include, for instance, marijuana that was grown in, sold in, and never left a given state.
    – Ryan M
    Commented Mar 3, 2021 at 19:50
  • 2
    @ohwilleke Of course, Congress can pick and choose when to "gobble". IIRC, McConnell invoked state authority over elections as the reason for Congress not addressing election security.
    – Barmar
    Commented Mar 3, 2021 at 20:20

I am not convinced that all of the examples are indeed valid laws. There are also conceivable grounds to invalidate a law (at least as applied to particular circumstances) beyond the law being unconstitutional.

For example, if the law conflicts with another law on the books, the court has to decide how to apply them together, the court could determine that the law wasn't intended to mean what it literally says (perhaps interpreting it to mean, for example, a very narrow definition of income in the 120% of income context), or could determine that even if the law was violated that there is no meaningful remedy for violating it.

This said, courts can't just say that a law is a bad idea and will do all sorts of harm and therefore shouldn't be given effect. There are lots of very harsh laws on the books that are routinely given effect by courts in circumstances when they are harsh.

Among the areas where the law is very harsh are (1) the law governing setting aside criminal convictions where there is a possibility of actual innocence of the crime, (2) laws sentencing people to as much as life in prison without possibility of parole for shoplifting (when they have a prior criminal record), (3) laws executing people for participating in a burglary which unexpectedly involved another person involved in the crime killing someone without the executed person's involvement or direction, (4) laws imposing huge civil judgments for failing to file a response to legal papers within twenty-one days, (5) laws effecting civil forfeiture of large sums of cash or other assets without anyone being convicted of alleged crimes, and (6) laws allowing people to have their sentence for a crime they were convicted of based upon a charge that the person was acquitted by a jury of committing, etc.

  • Can you, please, make the last part of the last sentence more clear? I have now re-read it 3 times and I still don't understand it.
    – grovkin
    Commented May 3, 2021 at 17:05
  • @grovkin I am simply listed a lot of very harsh laws. I broke them up into numbered items for clarity.
    – ohwilleke
    Commented May 3, 2021 at 18:51

The courts can't intervene, period. If someone files a suit or an appeal related to a law, then the courts might have jurisdiction and do something, but somebody else has to get the ball rolling. That somebody has to "have standing", and not just be unhappy: they have to have been injured (actually or imminently), there has to be a causal relation between the action being sued over and the injury, and the court has to be able to actually solve the problem.

One possibility is that the courts can rule that the government has misinterpreted the law, i.e. the statute does not actually say that everybody pays 120% of their income, or a regulation set under a certain statute is not consistent with that the statute says (the agency exceeds its authority). The other, which you stipulated is not the case, is that the law is unconstitutional (a fact that only the courts can decide).

Your examples are not constitutionally valid, which is a problem with stipulations in hypotheticals. The primary basis on which any "extremely destructive" law would be overruled is indeed constitutionality.


Jury nullification (for example, a jury simply ignores the law) developed and is legal in the US precisely because certain laws were passed that were felt to be unjust. The Wikipedia article on this subject has some interesting cases, for example the Fugitive Slave Act and Prohibition as well as maritime and free-speech cases just prior to the American Revolution.


So, I quibble with the premise of your question a little bit, because it's hard to imagine that an "extremely destructive" law, along the lines of the examples you've given, wouldn't be unconstitutional in some way. I don't know that much about tax or pharma law, but I'm not sure it's necessarily true that those two examples are constitutional.

Accepting your premise as true, that congress passed a wholly constitutional law, I think there would theoretically be nothing the courts could do.


No. In order for the courts to pass on the merits of legislation, as a threshold matter a “case or controversy” must be brought by parties with “standing.” Cf Art. III, Sect. 2.

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